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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 70223
Experience:  Qualified Employment Solicitor
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My daughter started a job yesterday and was sent home because

Customer Question

My daughter started a job yesterday and was sent home because she has asthma. There was no mention of this in the job advert or in the 2 interviews she attended. She has waited 4 weeks to start the job and turned down 2 other apprenticeships to take it. The job is in an office at a company that manufactures foam. And the explanation is that chemicals in the air can affect Asthma sufferers. Is the company at fault in not mentioning this in the job selection process
Submitted: 5 years ago.
Category: Employment Law
Expert:  Ben Jones replied 5 years ago.
Ben Jones :

, my name is ***** ***** it is my pleasure to assist you with your question today. Is she having her employment terminated? Can the employer do something to assist her, like make changes or provide equipment to reduce the effects?

JACUSTOMER-b11gzvh2- :

The employer has offered to pay her till the end of the month and she will have to have a medical in a week. But her chances were very slim . This was stated in a letter from the company received this morning. They also admitted their selection procedure was flawed.

Ben Jones :

, sorry I was offline by the time you had replied. Whilst employer can be expected to ask about pre-existing conditions that may be specifically affected by certain aspects of the work in question, it is impossible to cover all possibilities. , there could be certain allergies or more unique conditions that someone may not know would be affected by the working environment until they are actually exposed to it. I understand that asthma is a more common condition but the question is whether it would have been reasonable employer to know that the working environment could specifically affect someone with asthma.

In terms of terminating her employment, she will not have many rights because until she has at least 2 years of continuous employment she will not be protected against unfair dismissal, meaning they can just issue her with the notice period under her contract and terminate her that way.

However, if she can show that her asthma amounts to a disability hen the employer would have had a duty to make reasonable adjustments and they cannot just state they cannot take her on without attempting to see what adjustments could have been made.

What amounts to ‘reasonable adjustments’ can have a wide interpretation and often depends on the individual circumstances of the employer, their business, the potential impact on other employees, the available resources, etc. Whilst legislation does not currently provide specific examples of what adjustments can be made, the following are examples that have been considered reasonable in case law over time:

  • making adjustments to work premises;

  • allocating some of the employee’s duties to others;

  • transferring the employee to fill an existing suitable vacancy;

  • altering the employee’s hours of work;

  • allowing the employee to be absent during working hours , assessment or treatment connected to their disability;

  • acquiring or modifying specialist equipment;

  • providing supervision or other support.

So she could consider a claim discrimination in the employment tribunal but only if she can show that her asthma amounts to a disability. In the legal sense of the word, disability can have a broad meaning and there is no single list of medical conditions that qualify. Instead, to establish whether a person is disabled, they need to show that they meet the legal definition of a ‘disability’.

The Equality Act 2010 defines a disability as a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.

I will break this definition down:

  • Physical or mental impairment – this can include nearly any medical condition;

  • Substantial effect – the effect must be more than minor or trivial;

  • Long-term - the effect of the impairment must either have lasted or be likely to last least 12 months;

  • Normal day-to-day activities – these could include anything considered ‘normal’ in a person's normal daily routine (e.g. walking, driving, speaking, eating, washing, etc.)

If a person satisfies the above criteria, they will be classified as being disabled. She has 3 months to make her claim if she was to pursue one.

Hope this clarifies your position? If you could please let me know that would be great, thank you

JACUSTOMER-b11gzvh2- :

Great Answer.. The fact is that the Employers know that Asthmatics could be affected and it's company policy not to employ people with Asthma. The recruitment policy is totally flawed and this incident has exposed this. The company are very open in admitting this. My daughter turned 2 other apprenticeships down to take this job and waited 5 weeks to start. She could have been working and earning . Now she's in limbo. Another interview tomorrow. But doesn't know what to do.

Ben Jones :

If the employer cannot make reasonable adjustments to let her work there and she will actually be affected by this, then it is unlikely that she would want to push job there so all she can consider is some compensation from the employer, perhaps t cover the time until she find another job

Ben Jones :

, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else in relation to this? I just need to know whether to close the question or not? Thanks